Can children ever consent to sex? France’s row over a new sexual offence bill

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Shortly after Emmanuel Macron took power a year ago, the new French president announced that equality and women’s rights would be one of his “great causes”. But the government’s bill proposal on sexual violence, discussed in parliament this week, has been widely criticised by advocate groups and MPs, sparking a debate on child sex and consent. It has caused so much outrage that 250 French figures in psychology, law, science, academia, social rights and feminism have signed a letter urging Macron and his government to revise the bill. A petition has gathered close to 100,000 signatures. Where did Macron’s project go wrong?

Originally, the new bill on sexual offences was drafted to better tackle harassment, sexual abuse, assault and rape in the wake of the #metoo movement (#BalanceTonPorc in France). The bill takes a few steps forward: it introduces fines for catcalling on the street, which would be considered sexual harassment (although it remains unclear how to provide proof for street harassment if no police officer witnesses the offence) and extends the limitation for child rape victims to make a claim from 20 to 30 years.

But the “article 2” of the bill has been heavily criticised. The current law considers “sexual contact” with a minor under the age of 15 illegal, but doesn’t automatically consider it rape. The bill creates a new offence: “sexual violation of a minor by penetration”. This is punishable by 10 years in prison – a shorter spell than the 15 to 20 years reserved for rape. Under French law, “rape” is defined as “any act of sexual penetration, of any nature, committed on someone with violence, coercion, threat or surprise”. Critics of the new law think that any minor of 15 or less should be considered as not consenting, by default, and that the new status blurs the limits around what is considered rape of a minor.

Can a child consent to sex? A first draft of the new law set the age of consent at 15, but it was deleted after it raised concerns over the defendant’s presumption of innocence.

The “article 2” now states that “when the acts are committed on a minor of 15 or less”, surprise or coercion can be “characterised by the abuse of the victim’s vulnerability, who doesn’t have the necessary discernment to consent”.

If passed, the new law itself would not state that sex with a minor is not rape, but it would allow for cases of consent-less sex with minors to be judged as consensual, the critics say. “The law will facilitate the cases of rape on minor to be referred to the criminal court – cases in which it is often considered that coercion or surprise would be difficult to establish”, the letter reads. And if surprise and coercion are impossible to prove, with this new offence, a rapist may get a lesser sentence, for an offence and not a crime.

Critics have reasons to be worried. In 2017, the French public were shocked by the “Pontoise verdict”, in which a 28-year-old man was sentenced for “sexual violation” – and not “rape” – of a minor. The girl, who was 11 at the time, had followed the man and had not fought his advances, as the defendent recalled during the trial, which led to a verdict stating that the sexual intercourse had occurred “without violence, or coercion, or threat, or surprise”. And so it wasn’t judged as rape. The new law, the petition reads, “validates the Pontoise verdict. It is an unacceptable regression for children’s protection.”

Criticism of the “article 2” is not restricted to the opposition: 240 amendments on the bill have been filed by MPs of Macron’s majority party, La République en Marche (LREM). Many highlight the deeper problem with Article 2, namely that it demands the victim to prove they did not consent to sex – something that is not always easy to do, even in a case of rape, and therefore allows for a loophole that may benefit rapists. These MPs have been calling instead for the reverse: for the law to place the responsibility on the potential aggressor to prove the potential victim consented.

As the debate raged, #LeViolestunCrime (“Rape is a crime”) trended on social media. Yet the French government appears unlikely to revise the bill. Marlène Schiappa, the Secretary of State for Equality who co-wrote the new law, has said to parliament that the critics’ letter included “serious counter-truths”. “Of course, rape is a crime. The idea [of the bill] is to create a social taboo.” But she recognised that there would be no “automatic sentence”, and that the new law is “interpretative”.

The French government and the law’s critics have the same goal: preventing a new “Pontoise verdict”. If the “Article 2” remains in the voted bill, it will be up to French judges to ensure their interpretation of consent doesn’t bury Macron’s “great cause”. Based on previous cases, they have some catching up to do.